South African Business 2016 edition

SPECIAL FEATURE The top

SPECIAL FEATURE The top law firms South Africa has an independent judiciary, subject only to the Constitution and the law. South Africa’s legal system is based primarily on the South African Constitution and legislation passed by Parliament, with influences from Roman-Dutch and English common law, customary law, with case law being the primary agent for the development of the law, in line with current trends in business and society. Due to the Constitution, the South African legal system is rated very highly internationally, and the extent of the human rights afforded to marginalised groups makes us a leader worldwide and in Africa. Business operating in South Africa enjoy numerous advantages, with access to the courts being available for all civil disputes of any level of complexity. Despite a long waiting period for matters to be heard in the courts (six to 14 months, depending on the court), the outcome is usually of a very high standard. Matters of complexity are handled by large as well as medium-sized firms, as well as advocates who are the South African equivalent of the UK’s Queens Councils. The large firms are often termed the ‘Big Five’ (Norton Rose, Bowman Gilfillan, Webber Wentzel, Cliffe Dekker Hofmeyr and ENSafrica. Medium-sized firms are predominantly boutique firms that focus on providing a high-quality service to a small basket of major clients. In matters where there is an amount of over R500 000 at issue, the High Court has jurisdiction, and this requires briefing an advocate to appear in the High Court to argue the case. The advocate is appointed by the attorney and is chosen for their specialisation in the relevant area of law applicable. South Africa is not party to any international court that has jurisdiction over disputes arising from international trade or business. However, the private international law rules are applied by the South African courts. In essence, if the foreign company or individual has attachable property in South Africa that can be used to satisfy the financial outcome of the case, then the courts allow the hearing of the matter to take place in South Africa. With the right legal advisors, the South African legal system is easy to navigate and evenhanded in all matters. This provides certainty to international businesses and investors. Tim Dunn, LLB (Admitted Attorney) SOUTH AFRICAN BUSINESS 2016 48

SPECIAL FEATURE THE COURT SYSTEM No person or organ of state may interfere with the functioning of the courts, and an order or decision of a court binds all organs of state and people to whom it applies. The Constitution provides for the following courts: • Constitutional Court • Supreme Court of Appeal (SCA) • high courts • magistrate's courts • any other court established or recognised in terms of an Act of Parliament There are also special income tax courts, the Labour Court and the Labour Appeal Court, the Land Claims Court, the Competition Appeal Court, the Electoral Court, divorce courts, small claims courts, "military courts", and equality courts. The Constitutional Court, Supreme Court of Appeal and High Courts have the power to protect and regulate their own processes, and to develop the common law. The courts are also required to declare any law or conduct that is inconsistent with the Constitution to be invalid, and develop common law that is consistent with the values of the Constitution, and the spirit and purpose of the Bill of Rights. How are judges appointed? Judges in the various courts are appointed by the President in consultation with the Judicial Service Commission, the leaders of parties represented in National Assembly, and, where relevant, the President of the Constitutional Court. The Judicial Service Commission includes the Chief Justice, the President of the Constitutional Court and the Minister of Justice. It is a widely representative body, with the transformation of the judiciary remaining one of government's key priorities. Source: Southafrica.info THE DEPARTMENT OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT IS RESPONSIBLE FOR ENSURING AN ACCESSIBLE JUSTICE SYSTEM THAT PROMOTES AND PROTECTS SOCIAL JUSTICE, FUNDAMENTAL HUMAN RIGHTS AND FREEDOMS. THE NAMING OF COURTS There are 14 high courts in South Africa. Circuit Courts are also part of the High Court system. They sit at least twice a year, moving around to serve far-flung rural areas. Other courts that fall under the High Court system are Special Income Tax Courts, Labour Courts and Labour Appeal Courts, Divorce Courts, and the Land Claims Court. The Master of the High Court administers cases of deceased estates, liquidations, and registration of trusts, among others. The Sheriff of the High Court is an impartial and independent official of the Court appointed by the Minister of Justice and Constitutional Development who must execute all documents issued by the court, including summonses, notices, warrants and court orders. Source: mediaclubsouthafrica.com 49 SOUTH AFRICAN BUSINESS 2016